1. Definitions.
(a) “Client” means the individual or entity to whom the Proposal is addressed.
(b) “Proposal” means the proposal issued by Trainer to provide the Services to the Client.
(c) “Services” means the training services described in the Proposal, together with any deliverables therein described.
(d) “Trainer” means Clare Monteau, LLC, a New York limited liability company.
2. Offer and Acceptance.
These General Terms of Service (the “Terms”), together with the Proposal or other documents to which these Terms are attached or incorporated by reference, constitute an offer by Trainer to provide the Services in accordance with and subject to the terms herein. Unless otherwise specified in the Proposal, the Proposal will expire 30 days from its date and may be modified or withdrawn by Trainer at any time before receipt of Client’s conforming acceptance.
Upon acceptance of the Proposal by Client, the resulting contract (the “Contract”) will be governed by these Terms and by the terms set forth in the Proposal. Client's acceptance is expressly limited to these Terms. Any additional or different terms proposed by Client are objected to and rejected and will be deemed a material alteration hereof, unless expressly assented to in writing by Trainer. No contract will exist except herein provided.
The issuance of any purchase order by Trainer will constitute Client’s acceptance and assent by Client to these Terms. No facility entry form shall modify these Terms even if signed by Trainer’s representative. Any invoice, acknowledgement or other communication issued by Client in connection with the Proposal or the Contract will be construed to be for record and accounting purposes only, and any terms or conditions set forth in such communication will not apply to the Contract and will not be considered to be Client's exceptions to these Terms.
3. Services Provided.
Trainer will provide the Services described in the Proposal on the schedule therein.
4. Changes and Amendments.
The terms of the Contract, including these Terms and the scope of Services, can be changed or amended only by written agreement of the parties.
5. Trainer’s Personnel.
(a) Trainer’s Staff. Trainer will provide adequate staff to render the Services. If any member of Trainer’s staff is unacceptable to Client, Client will notify Trainer and Trainer will work with the Client to resolve the problem. Client agrees to furnish any facilities, personnel and/or equipment necessary to facilitate Trainer in providing the Services or as set forth in the Proposal.
(b) Client Project Manager. Client will designate a project manager for the Services (the “Client Project Manager”) who will act as a liaison between Client and Trainer.
(c) Progress Reports and Meetings. Trainer and Client Project Manager will hold meetings and issue reports are required by the Proposal or as they deem necessary to complete the Services.
6. Independent Contractor.
Trainer is an independent contractor. Except as set forth in the Proposal and agreed by the parties, Trainer shall determine the time, place, method, details and means of performing the Services. Neither Trainer nor Trainer’s employees are, or shall be deemed for any purpose to be, employees of Client. Client shall not be responsible to Trainer, Trainer’s employees or any governing body for any payroll-related taxes related to the performance of the Services.
7. Price and Payments.
(a) Price. The price of the Services (the “Price”) is the price stated in the Proposal.
(b) Invoicing. Trainer will invoice for Services performed in accordance with the payment terms specified in the Proposal. If no payment terms are specified, Trainer may issue invoices each month against progress of its work.
(c) Payments. Client will pay all properly invoiced amounts due to Trainer in accordance with the payment terms specified in the Proposal. If no payment terms are specified, Client will pay all properly invoiced amounts due to Trainer, without set-off for any payment from Trainer not due under this Contract, within thirty (30) days after Client's receipt of such invoice. In the event of a payment dispute, Client will deliver a written statement to Trainer listing all disputed items and providing a reasonably detailed description of each disputed item.
(d) Late Payments. Trainer is not required to commence or continue its performance, and will be entitled to a day-for-day extension of the time for performance of any Services, unless and until all payments have been made when due. For each calendar month, or fraction thereof, that any payment is late, Client shall pay a late payment charge computed at the rate of 1% per month on the overdue balance, or the maximum rate permitted by law, whichever is less.
8. Records and Taxes.
(a) Records. Trainer will maintain complete and accurate accounting records, in a form in accordance with generally accepted accounting principles, to substantiate any charges and expenses billed to Client pursuant to the Proposal, and will retain such records for a period of one (1) year from the date of final payment under the Contract.
(b) Taxes. Client will pay any sales, use excise or similar taxes applicable to the performance of the Services, if any, or in lieu thereof, Client will provide Trainer with a certificate acceptable to the taxing authorities exempting Client from payment of such taxes.
9. Standard of Performance.
Trainer warrants that each of its employees assigned to perform the Services will have the proper skill, training and background to perform in a competent and professional manner, and that the Services will be performed in such a manner. If any Services fail to meet the foregoing warranty, Trainer will re-perform such services. The warranty and remedy set forth in this paragraph are Trainer’s only warranty with respect to the Services and Client’s sole and exclusive remedy with respect to such warranty.
10. Force Majeure.
Trainer will not be liable for any delay or failure in the performance of its obligations under the Proposal to the extent that such delay or failure is caused by a Force Majeure Event. For purposes of these Terms, a "Force Majeure Event" is any event beyond the reasonable control of Trainer which makes timely performance by the Trainer or a subcontractor or supplier at any tier commercially impractical, including, but not limited to, acts of God or the public enemy, fire, flood, acts of war, government action, accident, earthquakes, explosion, epidemic, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. If a Force Majeure Event occurs, the time of performance of any Services will be extended by the amount of time lost by reason of the Event plus such additional time as may be reasonably needed to overcome the effect of the Event. Trainer will use commercially reasonable efforts to overcome the Force Majeure Event, minimize its effects and resume performance under the Proposal.
11. Confidentiality.
(a) Confidential Information Defined. Each of Client and Trainer (each, a “Disclosing Party”) may provide Confidential Information to the other (the “Receiving Party”) in connection with the Proposal and the Contract. “Confidential Information” means information or material that is proprietary or commercially valuable to the Disclosing Party, provided that such information is disclosed either: (a) in a tangible medium and marked “confidential” or “proprietary” at the time of written disclosure, or (b) orally or by demonstration and within twenty days thereafter is reduced by the Disclosing Party to a writing marked “confidential” or “proprietary.” Confidential Information does not include any information that (i) the Receiving Party lawfully knew without restriction before disclosure by the Disclosing Party, (ii) is now or becomes publicly known through no wrongful act or failure to act of the Receiving Party, (iii) developed by the Receiving Party independently without use of Confidential Information, or (iv) is hereafter lawfully furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure.
(b) Obligations of Receiving Party. The Receiving Party: (i) will keep all Confidential Information in confidence during and following termination or expiry of the Contract; (ii) will not directly or indirectly disclose any Confidential Information except as required pursuant to a requirement of a government agency or law, provided that the Receiving Party provides prompt notice to the Disclosing Party of such requirement prior to such disclosure; (iii) will limit its intentional distribution of Confidential Information to those who have a need to know; (iv) will in no event use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Confidential Information; (v) not use Confidential Information except in the course of performing its obligations under the Contract; and (vi) will not use Confidential Information for its own benefit or for the benefit of any third party.
12. Intellectual Property; License.
As between the parties, all drawings, notes, documents, business processes, information and materials made, conceived or developed by Trainer alone or with others which result from or relate to any Services performed under the Contract (collectively, "Work Product"), and all rights with respect thereto, will at all times be and remain the sole and exclusive property of Trainer. The foregoing notwithstanding, Trainer hereby grants to Client a non-exclusive, royalty-free worldwide license to use such of Trainer's intellectual property, if any, as required to give Client full benefit of the Services. Except as otherwise set forth herein, as between them, each of Trainer and Client will retain sole and exclusive rights in all of its intellectual property.
13. Compliance.
(a) Compliance with Laws. Trainer will comply with laws applicable to the performance of Services in effect at the place of performance.
(b) Health & Safety. Client will maintain safe working conditions at any Client site where Services are performed, including, without limitation, implementing appropriate procedures regarding hazardous materials. Client will advise Trainer in writing of all applicable site-specific health, safety, security and environmental requirements and procedures.
14. Insurance.
Trainer will procure and maintain for itself and its employees all insurance coverages as required by Federal or State law, including workers' compensation insurance if required.
15. Indemnity.
Each party will indemnify, defend and hold harmless the other party, its affiliates, and their respective directors, officers, employees, customers and agents, from and against any and all claims, demands or causes of action alleging personal injury (including death) to any party or damage to the tangible property of third parties, in each case to the extent of the negligence, willful misconduct or strict liability of the indemnifying party. These obligations to indemnify will survive the expiration or termination of the Contract by either party for any reason. The indemnifying party may, at its option, conduct the defense of any third-party action and the indemnified party will cooperate in the defense as reasonably requested.
16. Limitations and Exclusions.
(a) Limitation of Liability. Trainer’s aggregate liability for all claims of any kind arising from or related to the Contract will in no event exceed the lesser of the Price or such amount as may be set forth in the Proposal.
(b) Exclusion of Consequential Damages. In no event will Trainer be liable for loss of profit or revenues; interruption of business; cost of capital, downtime costs or increased operating costs; any special, consequential, incidental, indirect, or punitive damages; or for claims of the Client’s customers for any of the foregoing types of damages.
17. Miscellaneous.
(a) Assignment. Neither the Contract nor any of the rights and obligations of Client thereunder may be assigned or transferred by Client without the prior written consent of Trainer. The Contract will be binding upon and inure to the benefit of parties and their respective successors and permitted assigns and no other person will have any right, obligation or benefit hereunder. Any attempted assignment or transfer in violation of this Section will be void.
(b) Notices. All notices, requests, demands and other communications that are required or may be given pursuant to the Contract will be in writing and sent by mail, overnight courier or electronic mail, to Client at the address indicated in the Proposal, or to Trainer at PO Box 224, Kinderhook, New York, 12106, or to such other address as one party may later specify to the other party in writing.
Delivery of any such notices will be deemed sufficient in all respects and to have been duly given as follows: (i) on the actual date of service if delivered personally; (ii) at the time of receipt if given by electronic mail to the e-mail addresses set forth in the Proposal or otherwise communicated to the other party; provided, however, that a party sending notice by electronic delivery will bear the burden of authentication and of proving transmittal, receipt and time of receipt; (iii) on the third day after mailing if mailed by first class mail return receipt requested, postage prepaid and properly addressed as set forth in this Section; or (iv) on the day after delivery to a nationally recognized overnight courier service during its business hours.
(c) Amendment and Modification. No change to the Contract or to these Terms is binding upon Trainer unless it is in writing, specifically states that it amends these Terms and is signed by an authorized representative of Trainer.
(d) Waiver. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Contract will operate or be construed as a waiver thereof. Waiver by either party of any default of the other will not operate to excuse the defaulting party from further compliance with this contract, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Governing Law; Disputes.
The Contract will be governed and construed according to the laws of the state of New York without regard to principles of conflicts of law. Any dispute, controversy or claim arising out of or relating to the Contract will be finally settled in the state and federal courts sitting in Albany County, New York, and the parties hereby submit to the jurisdiction of such courts for that purpose.
